NOTE: This decision is from August 2010 and is part of a string of ongoing litigation surrounding the Cape Wind off-shore project.

Cape Wind Associates, in its plan to construct a 130 turbine wind farm entirely in Federal waters, sought permission from the Energy Facilities Siting Board to construct transmission lines passing under Massachusetts territorial waters for 6 miles that would connect the wind farm to the regional power grid. After the Cape Cod Commission denied Cape Wind’s proposed development of regional impact (DRI), which was one of the required approvals for the transmission project, “without prejudice” for failure to submit the full body of information, Cape Wind filed a petition with the siting board for a §69K certificate. Such a certificate would serve as a composite of all individual permits, approvals or authorizations which would otherwise be necessary for the construction and operation of the facility, and Cape Wind requested it also include the equivalent of the necessary DRI approval.

After 2 days of hearing, the siting board granted the certificate to Cape Wind, and government entities with permits at issue and three non profit organizations appealed, challenging the decision based on claims concerning aspects of the siting board’s jurisdictional authority, the validity of the decision, and the validity of a regulation promulgated by the Department of Environmental Protection (DEP) governing the issuance of licenses of structures on commonwealth tidelands necessary to accommodate a water dependent use.

The Supreme Judicial Court of Massachusetts affirmed the decision of the siting board and concluded the challenged regulation was valid. In response to the petitioners’ assertion that the siting board had no jurisdiction under §69K to grant the equivalent of an approval of Cape Wind’s DRI, the court found there was no disabling inconsistency between the siting board statute, which states that an applicant must first try to obtain the necessary regulatory approvals from the relevant permitting agencies, and the Cape Cod Act, which allows an aggrieved party to appeal a commission decision on a DRI to appeal to the county superior court. Their argument that the commission’s denial of a DRI cannot serve as the basis for a petition to the siting board for a certificate failed because the siting board’s interpretation is entitled to respect and deference. The siting board was given a legislative delegation of authority to act in the place of DEP and to administer public trust rights within DEP’s jurisdiction in deciding whether to approve a license relating to the Commonwealth’s tidelands.

Petitioners asserted there was no jurisdictional limitation on the siting board to consider the “in-State impacts” to the transmission lines only and not the wind farm itself, because they must consider all direct and indirect impacts of the entire project. However, the siting board’s regulatory point of focus was on the proposed “facility,” constituted only by the new electric transmission lines, and the wind farm itself would be within Federal jurisdiction “paramount” in the area. Since the transmission lines are necessary for the wind farm’s operation, the siting board would be exceeding its authority if it denied certificate for the transmission lines based on the impacts of the wind farm itself. The siting board, in fact, by allowing the testimony of the of witnesses pertaining to the transmission project considered the in-State impacts of the entire length of the transmission lines as they relate directly to the facility over which it had jurisdiction. The in-State impacts of the wind farm had undergone extensive scrutiny by Federal and State agencies and thus the siting board’s determination that it was required to defer to Federal review was proper.

The siting board’s certificate decision, which found that Cape Wind showed the transmission project was needed, compatible with considerations of environmental protection, public health, and safety, and in conformance with State and local laws, and required to serve the public interest and convenience, was upheld by the Court. The siting board fully addressed the reasonableness standard by relying on the Federal review over the wind farm itself and relying on its findings consistent with the implementation of energy policies, and articulated support for its conclusions.

Alliance did not meet its burden to establish invalidity of the water-dependant use regulation by alleging that it did not permit DEP to define any use of an infrastructure facility associated with a generating facility as “water-dependent” unless it also evaluates the impacts of the generating facility itself. The Court reasoned that while the DEP has no jurisdiction over the facility located offshore in Federal waters or otherwise is not in a position to assess its allegedly adverse impacts to the Commonwealth, the fact that the facility receives the necessary Federal permits made it rational for the DEP to adopt regulation that focuses solely on the infrastructure facility used to transmit electricity from the offshore and out of jurisdiction generating facility and to define it as “water-dependent.” The case was remanded to the county court with judgment entered affirming the decision of the Energy Facilities Siting Board and declaring that 310 Code Mass Regs. §9.12(2)(b)(10) as a valid regulation.

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